U.S. Department of Commerce, National Bureau of Standards, Washington, DC (Activity) and American Federation of Government Employees, Local 2186, Boulder, Colorado (Union)

[ v03 p615 ] 03:0615(98)AR
The decision of the Authority follows:

3 FLRA No. 98
U.S. DEPARTMENT OF COMMERCE,
NATIONAL BUREAU OF STANDARDS,
WASHINGTON, D.C.
Activity
and
AFGE LOCAL 2186, BOULDER,
COLORADO
Union
Case No. 0-AR-6
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
AWARD OF ARBITRATOR FRED L. ROCKWELL FILED BY THE AGENCY UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)).
ACCORDING TO THE RECORD BEFORE THE AUTHORITY, THE ACTIVITY POSTED A
VACANCY ANNOUNCEMENT FOR A POSITION AT THE WG-6 LEVEL. THE FIVE
APPLICANTS FOR THE POSITION INCLUDED THREE MERIT PROMOTION CANDIDATES
(ONE OF WHOM WAS THE GRIEVANT), A REASSIGNMENT CANDIDATE, AND AN
APPLICANT FROM OUTSIDE THE AGENCY WHO WAS ELIGIBLE FOR REINSTATEMENT.
THESE LATTER TWO CANDIDATES WERE ELIGIBLE FOR THE POSITION
NONCOMPETITIVELY. THE REINSTATEMENT ELIGIBLE CANDIDATE WAS SELECTED FOR
THE POSITION AND A GRIEVANCE WAS FILED WHICH CLAIMED THAT THE SELECTION
VIOLATED THE PARTIES' NEGOTIATED AGREEMENT.
THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION WITH THE
ARBITRATOR STATING THE ISSUES BEFORE HIM AS FOLLOWS:
1. DID THE NATIONAL BUREAU OF STANDARDS VIOLATE THE NEGOTIATED
AGREEMENT IN NON SELECTING
THE GRIEVANT FOR PROMOTION TO THE POSITION OF TOOL AND PARTS
ATTENDANT?
2. IF VIOLATION OCCURRED, WHAT REMEDY IS APPROPRIATE?
AS TO THE FIRST ISSUE, THE ARBITRATOR DETERMINED THAT THE ACTIVITY'S
SELECTION WAS DEFECTIVE BECAUSE IT DID NOT CONFORM TO THE NEGOTIATED
AGREEMENT. HE FOUND IN THIS REGARD THAT THE ACTIVITY HAD FAILED TO
IDENTIFY ANY EFFORT TO UTILIZE TO THE MAXIMUM THE SKILLS AND TALENTS OF
ITS EMPLOYEES, IN THIS CASE THE GRIEVANT, AS REQUIRED BY THE AGREEMENT.
THE ARBITRATOR HAD CITED ARTICLE XIV, SECTION 1 OF THE PARTIES'
NEGOTIATED AGREEMENT AS FOLLOWS:
IT IS AGREED THAT MANAGEMENT WILL MAKE EVERY REASONABLE EFFORT TO
UTILIZE TO THE MAXIMUM
THE SKILLS AND TALENTS OF ITS EMPLOYEES IN ORDER TO ACHIEVE THE
RESULTING BENEFITS OF HIGHER
MORALE AND REDUCED TURNOVER. PRIMARY CONSIDERATION, THEREFORE, WILL
BE GIVEN TO FILLING
VACANT POSITIONS THROUGH THE PROMOTION OF PRESENT EMPLOYEES. THE
UNION AGREES THAT,
CONSISTENT WITH THE CONCEPT OF THE MERIT SYSTEM, THE AGENCY HAS AN
OBLIGATION TO SELECT FROM
AMONG THE BEST QUALIFIED INDIVIDUALS AVAILABLE. LIKEWISE, THE
ARBITRATOR FOUND THAT NO EFFORT HAD BEEN MADE TO PROVIDE THE GRIEVANT
WITH PRIMARY CONSIDERATION AS REQUIRED BY THE AGREEMENT. THEREFORE, THE
ARBITRATOR HELD THAT THE ACTIVITY HAD VIOLATED THE AGREEMENT WHEN IT DID
NOT SELECT THE GRIEVANT AND HE SUSTAINED THE GRIEVANCE.
AS TO THE SECOND ISSUE BEFORE HIM, THE ARBITRATOR ACKNOWLEDGED THAT
REMEDIES UNDER THE BACK PAY ACT OF 1966 (5 U.S.C. 5596) ARE NOT
AVAILABLE UNLESS IT IS ESTABLISHED THAT BUT FOR THE WRONGFUL ACTION THE
WITHDRAWAL OF PAY WOULD NOT HAVE OCCURRED. ON THE BASIS OF TESTIMONY AT
THE HEARING, THE ARBITRATOR FOUND:
(T)HE GRIEVANT WOULD NOT HAVE RECEIVED THE ASSIGNMENT EVEN THOUGH AN
UNWARRANTED PERSONNEL
ACTION TOOK PLACE. ACCORDINGLY, THE GRIEVANT DOES NOT MEET THE "BUT
FOR" CRITERIA AS OUTLINED
BY THE PROVISIONS OF THE BACK PAY ACT AND IS NOT ENTITLED TO ANY BACK
PAY. THEREFORE, THE ARBITRATOR RULED THAT THE GRIEVANT WAS ENTITLED TO
THE POSITION BUT WAS NOT ENTITLED TO BACKPAY. ACCORDINGLY, HE MADE THE
FOLLOWING AWARD:
THE GRIEVANCE IS SUSTAINED. THE GRIEVANT WILL BE ASSIGNED TO THE
POSITION OF TOOL AND
PARTS ATTENDANT WG-6 NOT LATER THAN THIRTY DAYS AFTER THE RECEIPT OF
THIS AWARD. THE GRIEVANT
WILL RECIEVE NO BACK PAY.
AS PREVIOUSLY STATED, THE AGENCY FILED A PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD. THE RULES OF PROCEDURE SET FORTH IN 5 CLF.R. PART
2411(1978), AS AMENDED BY SECTION 2400.5 OF THE AUTHORITY'S TRANSITION
RULES, 44 F.R. 44741, REMAIN OPERATIVE WITH RESPECT TO THIS CASE TO THE
EXTENT THAT THEY ARE CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
OF THE STATUTE (5 U.S.C. 7122(A)).
UNDER SECTION 2411.32 OF THESE RULES AS AMENDED, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
AGENCY'S EXCEPTION THAT THE ARBITRATOR'S AWARD VIOLATES APPROPRIATE
REGULATION, SPECIFICALLY THE FEDERAL PERSONNEL MANUAL. THE AUTHORITY
ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE AWARD. THEREAFTER,
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7105(I) OF THE STATUTE (5
U.S.C. 7105(I)), THE AUTHORITY REQUESTED AN ADVISORY OPINION FROM THE
OFFICE OF PERSONNEL MANAGEMENT CONCERNING THE PROPER INTERPRETATION OF
RELEVANT PROVISIONS OF THE FEDERAL PERSONNEL MANUAL AS THEY MAY PERTAIN
TO THE ARBITRATOR'S AWARD IN THIS CASE.
IN ITS RESPONSE TO THE AUTHORITY'S REQUEST, THE OFFICE OF PERSONNEL
MANAGEMENT ADVISED THAT MANAGEMENT'S RIGHT TO SELECT OR NOT TO SELECT A
PARTICULAR CANDIDATE FOR A POSITION CANNOT BE ABRIDGED UNLESS A
COMPETENT AUTHORITY DETERMINES THAT THERE IS A DIRECT CAUSAL CONNECTION
BETWEEN AN AGENCY'S UNWARRANTED ACTION AND THE FAILURE TO SELECT A
SPECIFIC EMPLOYEE. THE OFFICE OF PERSONNEL MANAGEMENT IS OF THE OPINION
THAT THERE IS NO EVIDENCE IN THIS CASE OF THE REQUIRED "BUT FOR"
RELATIONSHIP. IT NOTES IN THIS RESPECT THE ARBITRATOR ACKNOWLEDGED THE
GRIEVANT WOULD NOT HAVE BEEN SELECTED EVEN IF THE ACTIVITY'S UNWARRANTED
PERSONNEL ACTION HAD NOT OCCURRED. IT CONCLUDES THAT WITHOUT THE
NECESSARY "BUT FOR" FINDING, THE ARBITRATOR'S AWARD VIOLATES CIVIL
SERVICE RULES AND REGULATIONS AND IS THEREFORE UNENFORCEABLE. THE
ADVISORY OPINION OF THE OFFICE OF PERSONNEL MANAGEMENT IS THAT
"IMPLEMENTATION OF THE ARBITRATOR' AWARD IN THIS CASE WOULD CONTRAVENE
BINDING OPM DIRECTIVES." A COPY OF THIS RESPONSE OF THE OFFICE OF
PERSONNEL MANAGEMENT WAS SENT TO THE PARTIES TO AFFORD THEM AN
OPPORTUNITY TO FILE COMMENTS ON THE RESPONSE FOR THE AUTHORITY'S
CONSIDERATION PRIOR TO REACHING A FINAL DECISION IN THIS MATTER.
NEITHER PARTY FILED COMMENTS.
THE QUESTION BEFORE THE AUTHORITY IS WHETHER THE ARBITRATOR'S AWARD
IS DEFICIENT BECAUSE IT IS CONTRARY TO CIVIL SERVICE RULES AND
REGULATIONS. AS NOTED PREVIOUSLY WITH RESPECT TO THE RELEVANT CIVIL
SERVICE RULES AND REGULATIONS, THE OFFICE OF PERSONNEL MANAGEMENT
INTERPRETS THESE DIRECTIVES TO REQUIRE THAT AN ARBITRATOR MUST FIND A
DIRECT CAUSAL CONNECTION BETWEEN AN AGENCY'S VIOLATION OF ITS COLLECTIVE
BARGAINING AGREEMENT AND ITS FAILURE TO SELECT A PARTICULAR EMPLOYEE FOR
PROMOTION BEFORE THE ARBITRATOR SPECIFICALLY FOUND AND EXPRESSLY
ACKNOWLEDGED THAT THE GRIEVANT WOULD NOT IN ANY EVENT HAVE BEEN SELECTED
FOR THE POSITION. THE INTERPRETATION OF THE APPLICABLE REGULATIONS BY
THE OFFICE OF PERSONNEL MANAGEMENT AS TO WHEN AN AGENCY MAY PROPERLY BE
CONSTRAINED TO SELECT A PARTICULAR EMPLOYEE FOR A POSITION IS NOT
CHALLENGED BY THE PARTIES AND NO OTHER BASIS FOR DISAGREEMENT WITH SUCH
INTERPRETATION IS APPARENT IN THIS CASE. THEREFORE, THE AUTHORITY FINDS
THE ARBITRATOR'S AWARD IS DEFICIENT AS CONTRARY TO CIVIL SERVICE RULES
AND REGULATIONS /1/ TO THE EXTENT THAT THE AWARD ORDERS THE GRIEVANT
ASSIGNED TO THE POSITION OF TOOL AND PARTS ATTENDANT, WG-6.
PURSUANT TO SECTION 2411.37(A) OF THE AMENDED RULES, THE AWARD IS
ACCORDINGLY MODIFIED BY STRIKING THE SECOND AND THIRD SENTENCES OF THE
AWARD. AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
ISSUED, WASHINGTON, D.C., JULY 10, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ IN ITS RESPONSE THE OFFICE OF PERSONNEL MANAGEMENT SPECIFICALLY
CITES FEDERAL PERSONNEL MANUAL CHAPTER 335, SUBCHAPTER 2, REQUIREMENT 6
(WHICH SETS FORTH MANAGEMENT'S RIGHT TO SELECT), RULE 7.1 OF THE CIVIL
SERVICE RULES FROM WHICH THAT RIGHT IS DERIVED, AND FEDERAL PERSONNEL
MANUAL CHAPTER 335, SUBCHAPTER 3-7C AS THEY WERE IN EFFECT AT THE TIME
OF THE ACTION GIVING RI